Computer underground Digest Wed May 5 1993 Volume 5 : Issue 33 ISSN 1004-042X Editors: Jim

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Computer underground Digest Wed May 5 1993 Volume 5 : Issue 33 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copy Editor: Etaoin Shrdlu, Senrio CONTENTS, #5.33 (May 5 1993) File 1--Intro to CPSR/EFF Electronic "Hate-Crimes" Inquiry Responses File 2--SEA letter - Hate Crime File 3--EFF Response to NTIA "Hate Crimes" Inquiry Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically from tk0jut2@mvs.cso.niu.edu. The editors may be contacted by voice (815-753-6430), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115. 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(Finland) ftp.warwick.ac.uk in pub/cud (United Kingdom) Back issues also may be obtained through mailserver at: server@blackwlf.mese.com COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing information among computerists and to the presentation and debate of diverse views. CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: 5 May 93 03:01:43 CDT From: Jim Thomas Subject: File 1--Intro to CPSR/EFF Electronic "Hate-Crimes" Responses Introduction to the CPSR and EFF letters responding to electronic "hate crimes" inquiry A quarter century ago, when hitch-hiking across the country between the coasts a few times a year, I would stop at a tiny hamlet in Wyoming (pop: about 90, plus a few dogs and cows) about 90 miles from nowhere. A small cafe with great hamburgers and a friendly bar (with even better hamburgers), and maybe sleeping out under the stars if I wasn't in a hurry. "Common courtesy" rather than laws and police enforcement ruled, and even the occasional stranger was treated like family. That was the decade of the sixties. Increased responsibilities and a change in life-style curtailed my road-bumming in the seventies and 10 years passed before I drove through that small community again. During that time, nearby Interstate 80 had been completed, making the town more accessible, and oil was discovered nearby, turning a tiny community in which everybody knew each and respected the rights of others, into a chaotic mini-city of thousands of newcomers. An expanded and professional police force enforced new laws passed to address the perceived social offenses caused by the population explosion of mostly young folk attracted to the oil boom and accompanying enterprises. A formal local government was created, and it made laws, regulated activitity, and attempted to accommodate the community to the changes brought by accessibility, prosperity, and expanding population. In some ways, the Electronic Community is like that small Wyoming town. The Internet and its peripheral locales, public access systems, and BBSes continue to grow as more newcomers enter cyberspace to settle or simply to visit. The proportion of cyberbozos to decent, Gopod-respecting citizens is quite small, but the expanding population means that we reach a critical mass despite the small percentage. A "jerk-ratio" of only half-percentage point in a population of 10,000 produces only 50 of 'em, which is fairly easily tolerated. The same proportion in a population of 10 million dramatically increases their visibility and influence. Most of the time, bozos are simply nuisances who are quick to flame with extreme invective or who simply attempt to articulate barely coherent but rather wild ideas or opinions. However, sometimes they use electronic media to harass others, to promote particularly distasteful ideas (such as anti-semitism or white supremacy), or to engage in what some consider "obscene" communication of a sexually explicit nature. Like that small Wyoming town, an increase in population subverts informal methods of encouraging common decency, and also challenges conventional prevalent notions of what constitutes "decency." One person's hate-group may be another person's noble band of freedom fighters. Although most people would probably agree that "hate-groups" in particular engage in the expression of unpalatable and distasteful ideas, there is no consensus about what should be done, especially in on-line situations. Should certain types of speech be restricted by university or sysop policies? Should government enact legislation to reduce certain types of noxious, but currently legal, expressions? Should a BBS that advocates "lynch the niggers, gas the kikes" be subject to laws curtailing the use of certain words or ideas? Should BBSes or ftp sites be prohibited by law or policy from making accessible the literature of Thunder, the Bloody Afterbirth writings, anarchist g-files, or adult gifs perceived by anti-porn advocates as "violence against women?" Cyberspace is like that small Wyoming town in several ways. First, there is really no great increase in the proportion of anti-social behavior; the dramatic and rapid increase in the population simply makes them more visible. Second, the tendency toward quick fixes through repression--the "tough town marshall" syndrome--seems an acceptable tradeoff to those willing to sacrifice a few rights for a calm social order. Third, when informal means of encouraging courtesy break down, it takes a while before alternative means replace them. Finally, as a historical point, expansion of a territory is often accompanied by chaos, and noxious expressions can be seen as simply a normal phase in the growth of the cyber community. We live in a period in which freedom of expression is under attack by diverse groups on all sides of the political spectrum. "Speech codes" at universities, "hate-speech/hate-crime" laws enacted in well-meaning but ill-considered ways, and pressures from both the left and right to curtail noxious expressions all threaten fundamental First Amendment principles. So, it's with considerable concern that we note the inquiry into "hate crimes" in electronic media begun by the National Telecommunications and Information Administration (NTIA). Despite a few organizations such as CPSR and EFF, there is no well-organized constituency for electronic freedoms that compares to the conventional social world. As a consequence, there seems a greater danger of government restrictions through legislation or policy on freedom of expression in cyberspace. Both CPSR and the EFF have responded to the NTIA's call for comments with strong letters in support of freedom of expression. CuD moderators agree absolutely and unequivocally that First Amendment protections should be protected--in fact, strengthened--in cyberspace. Any attempts to curtail freedom of expression in electronic media affect BBSes, net-surfers, and others, and should be an issue of concern to us all. We comment CPSR and the EFF for their responses, and re-affirm our own view that freedom of expression is a fundamental and inalienable right, and not one to be restricted simply because some moral entrepreneurs find the speech of others to be distasteful. ------------------------------ Date: 29 Apr 93 08:47:10 EDT From: Lance Rose <72230.2044@COMPUSERVE.COM> Subject: File 2--SEA letter - Hate Crime Society for Electronic Access Post Office Box 3131 Church Street Station New York, NY 10008-3131 April 26, 1993 Federal Express Office Of Policy Analysis and Development NTIA U.S. Department of Commerce 14th Street and Constitution Ave. NW Room 4725 Washington, D.C. 20230 Re: Letter of Comment Report on the Role of Telecommunications in Hate Crimes by the National Telecommunications and Information Administration ("NTIA") Dear Sir or Madam: I am submitting this Letter of Comment on behalf of the Society for Electronic Access ("SEA"). SEA is a membership organization dedicated to preserving freedom in electronic communications and developing greater public access to electronic communications. A more detailed description of SEA is enclosed. SEA hereby responds to the Notice of Inquiry and Request for Comments on the Role of Telecommunications in Hate Crimes recently published by NTIA in the Federal Register (the "RFC"). Summary of SEA Position SEA views the RFC as largely an inquiry into the repression of free speech for the purpose of combating "hate crimes." If NTIA devotes its efforts to the matters described in the RFC, it will result, at best, in a great waste of valuable time and resources. Very little of the legislation proposed in the RFC would stand up under the scrutiny required by the First Amendment to the Constitution of the United States for laws restricting freedom of speech. There is also potential for far worse if NTIA makes the speech-restricting recommendations intimated in the RFC. NTIA is operating under a fast-track procedure mandated by Congress in the enabling legislation. If Congress retains the current fast-track approach and acts swiftly to enact NTIA's recommendations into law, we may be faced with new federal laws seriously abridging freedom of speech in telecommunications, without a meaningful opportunity for public debate on the wisdom of such laws. To avoid these problems, SEA urges NTIA to restrict the focus of its inquiry to valid areas of rulemaking that do not repress freedom of speech. If necessary, NTIA should also point out to legislators the Constitutional bar to repressing speech in any medium, including telecommunications, as a means of achieving legislative goals. SEA recognizes that racially and ethnically motivated "hate crimes" are a problem in the United States today, and agrees that all U.S. citizens must be protected from those who would commit such crimes. The challenge to Congress is to find ways to combat the problem without curtailing our essential First Amendment freedom of speech. Effective approaches to combating hate crimes while leaving freedom of speech unaffected are available, as discussed below. These include increased use of telecommunications to educate the public about hate crimes, and the creation of a speech-neutral federal hate crime law modeled after the existing mail fraud and wire fraud statutes. Discussion 1. The First Amendment Prohibits Content-Based Regulation Of Hate Speech It must be recognized, as a starting point, that the First Amendment forbids regulation of "hate speech" based on the content of that speech. The government cannot enact content-based regulations on speech in general, nor can it single out "hate speech" for regulation. This principle was definitively established by the Supreme Court last year in R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992). In R.A.V., a black family in a predominantly white neighborhood in Minnesota endured a racially motivated cross burning on its lawn. The perpetrators were successfully prosecuted in the Minnesota courts under a municipal law that outlawed hate speech and related conduct. The Supreme Court invalidated the law. Its sweeping ruling left no doubt that all content-based regulations of protected speech, regardless of their purpose, run afoul of the First Amendment's protection of freedom of speech. Hate speech directed at racial, ethnic or religious groups may be repugnant, but it is no more than the expression of the speaker's viewpoint, and cannot be restricted. As the Court said, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire." Neither Congress nor the Executive Branch can override the R.A.V. decision, since the Supreme Court is the ultimate interpreter of the Constitution for the federal and state governments. Yet both Congress and NTIA suggest that despite the Supreme Court ruling, Congress is free to regulate hate speech as necessary for the control of hate crimes. In Section 135 of the Telecommunications Authorization Act of 1992, Congress directs NTIA to, "analyze information on the use of telecommunications . . . to advocate and encourage violent acts and crimes of hate . . . [and to] include any recommendations deemed appropriate and necessary by NTIA." Public advocacy, regardless of the object, is fully protected by the First Amendment. Advocating hate crimes is no exception to this rule. Accordingly, Congressional regulations to control the use of telecommunications "to advocate and encourage violent acts and crimes of hate" would run hopelessly afoul of the First Amendment. The most important "information" on the use of telecommunications for hate crime advocacy is the information that such advocacy cannot be regulated by Congress. Nonetheless, NTIA is currently acting under Congressional direction, and seeks reports of instances of the use of telecommunications for hate crime advocacy. In addition, NTIA is exploring the political acceptability of regulating hate speech in telecommunications. For instance, NTIA bluntly suggests that a bulletin board system operator could be forced by the government to censor hate speech messages: "Some have questioned whether, if computer bulletin boards become ubiquitous, the operator of a bulletin board system should have the ability to restrict the types of messages listed on it, or should have access to private messages on the system to enforce such restrictions." Any laws requiring such message-type restrictions are totally unacceptable. They would utterly chill speech on computer bulletin boards, and violate R.A.V.'s prohibition on content-based regulation of hate speech. In addition, government-ordered intrusions into private electronic mail to restrict hate speech would violate the federal Electronic Communications Privacy Act, which guarantees that private electronic transmissions will be safeguarded from all but the most carefully authorized government searches or seizures. NTIA goes even further, discussing the physical mechanism by which hate speech censorship could be exercised: "New Developments in telecommunications technologies may offer a means of preventing . . . hate crimes. . . . [W]ith respect to computer bulletin boards, computer software can allow computer bulletin board operators to eliminate unwanted messages from their systems." It's unclear whether NTIA is talking about a system operator manually removing messages deemed "unwanted" by the government, or setting up some kind of automatic computer program to filter out messages with bad words or themes. Either way, it's content-based regulation, and it is prohibited by the First Amendment. NTIA also disregards the powerful First Amendment bias against any regulation of telecommunications operators (aside from a perfunctory acknowledgment that a freedom of speech viewpoint exists). To the contrary, NTIA apparently assumes that regulation of telecommunications is freely available whenever Congress deems it necessary. For instance, at one point NTIA asks: "[B]roadcasters are subject to certain "public interest" obligations . . . Most point-to-point voice and data service is provided by common carriers subject to the authority of state and federal regulatory agencies . . . Computer bulletin boards are private, unregulated communications systems. To what degree do such legal and regulatory distinctions affect the commission and prevention of hate crimes using telecommunications?" The above sketch of the regulatory climate implies that computer bulletin boards are as regulable as broadcasters and common carriers. This is simply not so. In fact, "unregulated" is the Constitutional default setting for all speech distribution systems, including computer bulletin boards. Radio communications and common carriers are currently subject to some regulation, but this does not flow from any basic principle that regulating speech-carrying media is a readily available option. Regulation of these media is mostly a result of historical accident, coupled with a failure to predict the First Amendment dimension of these media at the time the regulations were first imposed. Broadcasters and common carriers are differently regulated, and regulated for different historical reasons. Only airwave broadcasters are subject to content-based "public interest" standards, on the sole basis that there are more applicants for use of the frequency spectrum than available frequencies. Those best serving the "public interest" are granted licenses. The "public interest" licensing approach has traditionally permitted a certain amount of attention to the content of broadcasted material. But such regulation is justified only by the scarcity of separate broadcast frequencies. In contrast, computer bulletin boards and nodes on the Internet, to name two widespread new means of telecommunication, do not suffer any scarcity of communications channels, so neither licenses nor license standards are necessary. Telephone common carriers are regulated due to the monopoly aspect of local carriers, and because the telephone system was initially viewed as a traditional regulated public utility similar to railroads and power suppliers. However, a cornerstone of common carrier regulation is that the common carrier has no responsibility for the content of speech carried on the system. Thus, it also provides no precedent for adding regulation to BBSs. Those urging new telecommunications regulations have to show that it's worth abridging the First Amendment to make room for such regulations. Neither Congress nor NTIA have done that, but such proof must be made before they can legally pursue regulatory agendas. Preventing the "hate crime" intimidation of people or groups by others is a laudable goal and a growing necessity. It seems that hate groups such as the neo-Nazis and Ku Klux Klan are healthier than ever. Reasonable regulations to keep these groups from hurting others are welcome. But speech, hurtful as it might be, must continue to be spared from regulation. Are Congress and NTIA dedicated to regulating hate crimes out of existence, regardless of the First Amendment? SEA would like to think not. 2. Other First Amendment Problems with Regulations Suggested by Congress and NTIA Aside from the absolute ban on content-based speech restrictions, there are other fundamental First Amendment problems with the hate speech regulations being explored by Congress and NTIA. First, any law or regulation that would single out "hate speech" from other hate crime conduct for special criminal treatment is patently illegal under the First Amendment. For example, in Simon & Schuster, Inc. v. New York State Crime Victims Board, 112 S.Ct. 501 (1991), the Supreme Court threw out New York's "Son of Sam" law, which sought to deny to convicts all profits from publicizing their stories, diverting the compensation instead to a state-run crime victims' compensation board. The Supreme Court declared the New York law void because it singled out publishing- related activities by convicts, and left other money-making activities by convicts untouched. The result was a special regulation aimed only at convicts' speech activities, which cannot stand under the First Amendment. The Court pointed out: "In short, the State has a compelling interest in compensating victims from the fruits of crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime." The Congressional enabling act language is just as narrowly focused on speech activities, to the exclusion of all else, as the Son of Sam law that was ultimately determined unconstitutional. The "scope of report" requested by Congress from NTIA is limited to "use of telecommunications . . . to advocate and encourage" hate crimes. NTIA was not requested to report on the role of telecommunications in hate crimes generally, but solely its role as a distributor of speech. Any ensuing hate crime regulations that might be proposed by NTIA and enacted by Congress, if they retain the same speech-only focus, would clearly violate the Supreme Court's Son of Sam ruling. Second, as discussed above, NTIA suggests that operators of private computer bulletin boards could be forced by law to restrict hate messages on their systems. This would be no less than the government forcing sysops into a censorship role. However, saddling bulletin board operators with such message monitoring requirements would create an enormous chilling effect on the operation of bulletin boards. Many bulletin board systems would suffer diminished operations or shut down from sheer administrative overload, while others would close up shop due to their operators' refusal to act as government censors. This would not only affect the hate speech the government is concerned about, it would severely damage the immensely greater flow of productive, rightful speech engaged in regularly by computer bulletin board users. The First Amendment absolutely forbids this kind of governmental burden on distributors of protected speech, as recognized in the seminal case of Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), recently decided in the Southern District of New York. Relying on the Supreme Court's protection of a book store from burdensome legal review requirements in Smith v. California, 361 U.S. 147 (1959), the district court held that CompuServe, in its role as a large-scale bulletin board operator, was protected by the First Amendment from actively monitoring its system for illegal materials. Such First Amendment protection similarly prohibits any attempt to force bulletin board operators to monitor their systems for hate speech. 3. Is There Any Permissible Means of Countering the Role of Telecommunications in Hate Crimes? While opposing all violations of the First Amendment protection of telecommunications, SEA recognizes the legitimate Congressional need to stamp out hate crimes. SEA asserts that there are means of combating the use of telecommunications in hate crimes which do not infringe on First Amendment rights. The primary use of telecommunications should be, as NTIA itself puts it, to create "more speech" about hate crimes. Public education by the news media on hate crimes and the enormous, unjustifiable damage they cause can lead to a reduction of such crimes in the long term. Congress should also investigate use of its spending power (as opposed to attempts at speech regulation) to add the government's voice to the discussion of hate crimes, thus increasing public education on the subject beyond that provided by news media fueled primarily by market forces. Another possible model for Congressional action is to develop telecommunications channels to assist those who are working on hate crimes and other community problems. For example, there are projects now underway in New York City that use electronic communications to increase contact, support and a sense of shared community among its citizens, and reduce the incidence of hate crimes. These include Youthline, a project to give Community Board youth coordinators city-wide online access to the full range of city youth services, and the Stop-the-Violence project, currently developing a computer bulletin board to assist in reducing racism and achieving other City and community goals. Another possibility is to develop a new federal hate crime law, modeled after the existing federal mail fraud and wire fraud statutes. Such a law would define "hate crimes" as a federal offense, and prohibit the use of interstate telecommunications facilities in the commission or attempted commission of hate crimes. It would be essential that the law be speech-neutral. The use of telecommunications facilities to commit crimes would be prohibited, but not any expression of views or positions, even views properly characterized as "hate speech." One test of the legality of any such law under the First Amendment would be whether it would permit people to broadcast "hate speech" viewpoints 24 hours per day to many thousands or even millions of people, without becoming liable for committing a hate crime. The SEA would be happy to work with the NTIA and other federal organizations that may wish to pursue drafting such laws, to assure they do not inadvertently restrict speech or other First Amendment rights. There are other areas which Congress might legally explore, but which are not supported by SEA. One possibility is use of the FCC broadcast licensing mechanism to regulate hate speech under the "public interest" mechanism. Such regulation could legally be applied to radio frequency broadcasters only, and only through the existing license granting or renewal mechanism. Again, SEA does not endorse such an approach, since it is still essentially a penalty to those who express certain ideas or viewpoints, and would have a certain chilling effect on speech. Conclusion NTIA's current task of investigating telecommunications and hate crimes could have far-reaching effects on telecommunications regulation in this country. NTIA is charged with making recommendations to a Congress interested in the "role telecommunications play in hate crimes," and it has been given an exceedingly short time to perform its research and develop policy proposals. Given the limited time available, it may be difficult for NTIA to fully consider all sides of the issues. Nonetheless, it is vitally important to insure that our government does not unlawfully abridge our First Amendment rights of free speech in the name of regulating hate crimes. With this letter, SEA has sought to help NTIA become more fully aware of the scope of our free speech rights in the telecommunications area, and the dangers to those free speech rights posed by the hate speech regulations suggested by Congress and NTIA. It is extremely important that NTIA's research and recommendations be directed at goals that are not only worthwhile in themselves, but also lawful under the Constitution. Public discussions of hate crimes are probably among the most important public discussions we can have in our society, and the First Amendment exists to make sure we can keep holding such discussions. Legal measures directed against hate crimes are also important, but they cannot be used to stifle the public discussion. Sincerely, Lance Rose Member, Board of Directors SEA Board of Directors: Stacy Horn, Chair Joseph King John McMullen Simona Nass Lance Rose Alexis Rosen Paul Wallich ------------------------------ Date: 27 Apr 93 13:44:00 PDT From: Cliff Figallo Subject: File 3--EFF Response to NTIA "Hate Crimes" Inquiry The National Telecommunications and Information Administration (NTIA), the executive branch agency that develops telecom policies, is doing a study on how telecommunications affect crimes of hate and violent acts against ethnic, religious, racial and sexually-oriented minorities. NTIA released the following official "Notice of Inquiry; Request for Comments" in the Federal Register. The following is EFF's response to this Request: =================================================================== Office of Policy Analysis and Development NTIA U.S. Department of Commerce 14th St. & Constitution Ave., NW, Room 4725 Washington, DC 20230 April 26, 1993 RE: Notice of Inquiry; Request for Comments Role of Telecommunications in Hate Crimes Docket No. 930349-3049 Dear Policy Analyst, NTIA has asked for public comment on the role of telecommunications in hate crimes.1 The Electronic Frontier Foundation (EFF)2 requests that the following comments be included in the record. As described more fully below, speech made over telecommunications networks is entitled to the fullest First Amendment protection. Although some material may be considered hate speech, new telecommunications technologies offer unparalleled access to all participants for engaging in vigorous debate. Instead of any government-initiated scheme to control Constitutionally- protected, even if noxious, speech in this new medium, government policy ought to promote broader access to the medium as the most appropriate response. Such an approach would be most fully consistent with First Amendment jurisprudence, exemplified by Justice Brandeis's oft-quoted contention, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."3 We urge NTIA to remain within this approach as it considers the record in this inquiry. The Important Role of Telecommunications Before electronic communications became available to the common person, the press was the chief means of educating the electorate. As Supreme Court Justice Potter Stewart once wrote: "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment by providing the people with the widest possible range of fact and opinion, but it is an incontestable precondition of self-government."4 Telecommunications is an even more powerful force for giving informed governance to the people. Telecommunications provides citizens with the power to disseminate and gather large amounts of information, including numerous different opinions on a single subject. This ability to gather differing opinions is essential to a person's ability to make critical choices. The government has a very strong obligation to protect a person's right to express opinions and to be exposed to the varying opinions of others. The First Amendment of the Constitution holds that "Congress shall make no law . . . abridging the freedom of speech. . . ."5 This does not simply mean protection of speech that is "politically correct." This protection extends to all speech, and the protection is especially important for speech that is not popular. As the Supreme Court has said, "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."6 Hate Speech on Electronic Bulletin Board Systems and Computer Networks EFF is especially concerned with NTIA's inquiry into the use of electronic bulletin boards (BBSs) for advocating and encouraging violent acts and the commission of crimes of hate. BBSs are a relatively new form of communication, and it is important that the speech that takes place over computer networks is given the same First Amendment protections as all other speech. In fact, there are reasons that words communicated over BBSs and computer networks should be given even greater protection than speech that is communicated through other media. There are currently over 45,000 privately run BBSs in the United States, and that number is growing exponentially.7 Electronic bulletin boards can be general in scope, or they can be dedicated to one particular topic The number of topics for which there currently are BBSs is only limited by the imagination. For example, in the Washington, D.C. area, there are bulletin boards dedicated to gardening, horse shows, Shriners, religion, handicapped issues, financial management, humor, fossil energy, radiological health, amateur radio, medieval fantasy, and, of course, computer programming tips.8 Undoubtedly, there are some bulletin board systems that carry hate speech. A 1985 study by the Anti-Defamation League of the B'nai B'rith (ADL) reported that the Aryan Nations ran a BBS out of Idaho (accessible through local calls in Idaho, Texas and North Carolina) and the neo-Nazis ran a BBS out of West Virginia. The first board, called the "Aryan Nation Liberty Net," described itself as "a pro-American, pro-white, anti-Communist network of true believers who serve the one and only God -- Jesus, the Christ." It essentially carried three categories of information: hate propaganda (against Jews, other minorities and the federal government), purported enemies of the cause (listing individuals and organizations that were "race traitors" and sometimes asking users to post where these "enemies" could be found), and listings of "patriotic groups" (such as neo-Nazi and Klan organizations) and their addresses.9 While the ADL study is over eight years old, hate speech on bulletin boards is probably even more prevalent today. Once reserved only for boards that catered to this type of speech, hate speech can now be seen on national information service providers catering to the general public. In October of 1991, Prodigy, one of the largest information services providers, was the site of a heated discussion about the Holocaust of World War II. Many messages were offensive to Jews and other users of the service. For example, one message said, "Hitler had some valid points too . . . Remove the Jews and we will go a long ways toward avoiding much trouble." Other messages claimed that the Holocaust never occurred.10 Many people were incensed over the messages and demanded that the messages be removed from Prodigy's public message areas. But the Prodigy incident exhibits precisely the reason why the government should _not_ become involved in censoring hate speech (or any kind of speech) on electronic bulletin board systems. After the derogatory messages were posted on Prodigy, a large discussion ensued, and many Prodigy users responded to the hateful statements by presenting recitations of historical facts and criticizing the original posters as being bigots. The discussion on Prodigy turned out to be a rather fair exchange, with both sides of the issue explaining their viewpoints, and each side being given the opportunity to learn more about the other. The hate speech was exposed as being just that -- hate speech -- and the posters of the messages had a tough time convincing the other users in the merits of their assertions. However, the print press sensationalized the story. Headlines such as "Hate Speech Enters Computer Age"11 and "Computer as Forum of Hate Poses Problem"12 appeared and caused many outside groups to become outraged that hate messages could be publicly posted. What these groups did not understand was that after the hate messages had been publicly posted, they were publicly refuted by others who had the same access to the same medium. Unfortunately for those of us who care about free speech, Prodigy received numerous complaints from the ADL and others, and, after initially resisting any change in policy, Prodigy eventually gave in and removed the derogatory messages and changed its policy regarding hate speech. Prodigy now says that it will bar any future postings that are "grossly repugnant to community standards." Prodigy staff members make such determinations on a case-by-case basis. Many users -- in fact, many more users than had initially complained about the hate speech -- were outraged by Prodigy's change in policy, claiming that their rights to free speech were being abridged. But Prodigy, a privately-owned company, stuck to its new policy.13 However, the government is not a privately-owned company. The government's obligation to not abridge speech is Constitutionally mandated. Any consideration on the part of the government to censor speech in any way should be approached with extreme caution. BBSs are proving to be an even better medium than any that have come before to share opinions and protect the basic freedom of speech that is central to our civil liberties. Computer bulletin board systems and networks are accessible to anyone with a computer and a modem. And if users of a BBS do not like something another user has posted, the users have available to them the same medium that delivered the noxious speech to refute it. In network communications, it is common to "flame," or verbally put down, a person whose speech is offensive. Since all users of computer networks and electronic bulletin boards have access to that medium of speech, all speech can lead to discourse. While private bulletin boards must be able to continue to make their own determinations regarding the information they allow to be posted and the individuals who can access their facilities, the government must make rules that keep access to this medium (albeit not access to particular boards) open to all on a nondiscriminatory basis. This is crucial to ensure that the ability to be heard remains with every individual. As soon as this medium is restricted to use only by those who have the money, or by those who say things that are "politically correct," it is no longer a medium that fosters and encourages the public debate that is so vital to our functioning as a democratic society. In a case that the United States Supreme Court intends to hear on appeal later this term, Wisconsin v. Mitchell,14 the Wisconsin Supreme Court eloquently explained the delicate balance that must be struck between hate speech and the First Amendment: "In the wake of the Los Angeles riots sparked by the acquittal of four white police officers accused of illegally beating black motorist Rodney King, it is increasingly evident that racial antagonism and violence are as prevalent now as they ever have been. Indeed, added to the statistical compilation of bias related crimes could be the vicious beating of white truck driver Reginald Denny by black rioters, horrifyingly captured on film by a news helicopter. As disgraceful and deplorable as these and other hate crimes are, the personal prejudices of the attackers are protected by the First Amendment. The constitution may not embrace or encourage bigoted and hateful thoughts, but it surely protects them. "Because we wholeheartedly agree with the motivation of the legislature in its desire to suppress hate crimes, it is with great regret that we hold the hate crimes statute unconstitutional -- and only because we believe that the greater evil is the suppression of freedom of speech for all of us." While EFF agrees that hate speech may be a contributing factor in the commission of hate crimes, the current Congressionally-mandated study begins with the wrong question when it comes to hate speech on BBSs. NTIA should not be considering ways to limit this type of speech. Instead, NTIA should be concerning itself with ways it can ensure access to all who care to make opinions known. By ensuring access to all citizens, when hate speech is espoused, that speech can be appropriately disagreed with and discussed by others with an equal voice. The best defense against those who preach hate is exposure, ridicule and reasoned discourse. Discourse of this type is the most basic of our civil liberties. For this reason, the Electronic Frontier Foundation respectfully asks that the NTIA make no recommendations to Congress that might undermine our basic rights to freedom of expression, and instead suggest ways to protect every citizen's access to media that will give each of us a voice. As the Prodigy case showed, allowing the opportunity for more speech is the best antidote for hate speech. Thank you in advance for your thoughtful consideration of our concerns. We would be pleased to provide NTIA with any further information that may be needed. Sincerely yours, Shari Steele Staff Attorney 1 NTIA has indicated that it intends to study crimes of hate against "ethnic, religious, and racial minorities" and "those based on sexual against any of these other groups. While EFF hopes that your speech, your findings would be remiss if you did not include women as victims of hate crimes in your research. 2 The Electronic Frontier Foundation is a privately funded, nonprofit organization concerned with the civil liberties, technical and social problems posed by the applications of new computing and telecommunications technology. Its founders include Mitchell Kapor, a leading pioneer in software development who was the first CEO of the Lotus Development Corporation and developed the Lotus 1-2-3 Spreadsheet software; John Perry Barlow, a rancher, writer and computer enthusiast; and John Gilmore, a cryptography expert and one of the original founders of Sun Microsystems. 3Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 4Brazburg v. Hayes, 408 U.S. 665, 726-7 (1972) (Stewart, J., dissenting). 5U.S. Const. amend. I. 6Texas v. Johnson, 491 U.S. 397, 414 (1989). 7BBS magazine editor Jack Rickard estimated that there were 41,000 bulletin board systems in the United States as of March 1992, triple the number of boards in existence 18 months earlier. It is difficult to determine the exact number of computer bulletin board systems in operation, because many are private and one must know the operator to use them. Gilbert, Computer Bulletin Board Operator Liability for User Misuse, 54 Fordham L. Rev. 439, 441 (December 1985) (citing Soma, Smith & Sprague, Legal Analysis of Electronic Bulletin Board Activities, 7 W. New Eng. L. Rev. 571, 572 (1985)). 8Focke's Monthly Listing of Verified DC BBS Numbers (March 1993). 9Anti-Defamation League of the B'nai B'rith, "Computerized Networks of Hate: An ADL Fact Finding Report" (January 1985). 10Leroux, "Hate speech" enters computer age, Chicago Tribune (October 27, 1991). 11Chicago Tribune (October 27, 1991). 12Los Angeles Times (November 16, 1991). 13See footnote 8. 14169 Wis. 2d 153, 485 N.W.2d 807 (1992). ------------------------------ End of Computer Underground Digest #5.33 ************************************

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